President Bush last month issued revisions to an executive order that further centralizes regulatory power within the White House budget office. His actions, nearly unnoticed at the time, set in motion changes that could further delay or hinder public health, safety, environmental, and civil rights protections.
Over the past 30 years, we have made significant progress through strong public safeguards. Our air and water are cleaner; our food, workplaces, and roads are safer; and civil rights protections have improved. These protections have saved many thousands of lives and improved the quality of life for all Americans – without hobbling industry or the economy.
Yet significant problems remain. Every year, more than 40,000 people die on our nation’s highways. Foodborne illnesses kill an estimated 5,000 and sicken 76 million. Nearly 6,000 workers die as a result of injury on the job, with an additional 50,000 to 60,000 killed by occupational disease. And asthma – linked to air pollution – is rising dramatically, afflicting 17 million, including six million children.
Instead of working to proactively protect public health, safety, and the environment with sensible safeguards, the Bush executive order requires all federal agencies to identify "market failures" before proposing a rule and puts the budget office in the catbird seat of assessing these analyses. In other words, if the White House budget office feels the agency has not demonstrated a market failure, it can decide that a rule is not needed. This flies in the face of Congressional mandates and common sense, and it could seriously impact the effectiveness of agency regulations.
The order will also extend the White House budget office's review to agencies' guidance documents – generally interpretive statements used to clarify regulatory obligations to industry or explain technical matters – for the first time. This can only further delay implementing health, safety and environmental protections.
Strikingly, Bush's order also makes the Regulatory Policy Officer in each agency a kind of political overseer. The executive order forbids any rulemaking, or even the consideration of rulemaking, from taking place unless the Regulatory Policy Officer is involved in the process, and that Officer must be a political appointee. This is a continuation of the administration's pattern of replacing sound science and expert knowledge with political judgments that benefit corporate special interests.
The White House budget office is also granted the authority to interfere with federal rulemaking to a much greater extent than before. Bush's directive allows the office to slam the door on proposed rules listed on each agency's annual Regulatory Plan before the American public even has a chance to participate in the rulemaking process.
Supporters of the executive order say that Bush's move will make the rulemaking process more transparent. However, it is likely that transparency will actually suffer under the order, as the White House will be able to kill regulations without public input and without a record of the process.
Those who uphold the order as an example of "good government" also claim that Bush has the authority to exert greater control over federal rulemaking because he is the head of the executive branch. Of course, centralizing power in the White House further politicizes the process. And it misses the point that in our system of constitutional government, Congress also has a say in the operation of federal agencies, and this executive order is another step toward shutting Congress out of the process.
So what does all this mean for the American people? In practical terms, it will likely be more difficult for federal agencies to protect us from a variety of dangers because longer delays will be built into the review process as more agency materials get funneled through the White House bottleneck. In some cases, the review process may also result in no regulation or a regulation that is written to benefit industry as opposed to the public.
While business gloats over the revised executive order, we, the people, are the real losers as hazards go unaddressed. We wonder why our food isn’t safe or why our next bite might include E. coli. We fear the devastating impact of climate change and what our next generation will face. We wonder why, more than five years after 9/11, our chemical plants are still not secure. We watch in dismay as workers in mines, such as in West Virginia, needlessly perish because of weak regulations and enforcement.
One of the messages from the past election was that the public is tired of our leaders putting special interests ahead of public interests. It is time to call upon our government to address today’s challenges, building on past successes. Unfortunately, the Bush executive order continues to move in the wrong direction, and it is time for Congress to intervene.
Dr. Gary D. Bass is the Executive Director of OMB Watch, a nonprofit government watchdog organization in Washington, DC. Rick Melberth is the Director of Regulatory Policy at OMB Watch.
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